Section 100 of the Code of Criminal Procedure provides that – Search for persons wrongfully confined:
“If any Metropolitan Magistrate, Magistrate of the first class or an Executive Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined; an such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.”
Plain reading of this section means that if any person is illegally confined in any place, then upon any application or on his own comprehension the Magistrate concern shall issue a warrant to the police concern for rescuing him immediately. Moreover, this jurisdiction u/s. 100 of CrPC can only be exercised when the alleged captivity ex facie appears to be offensive. If the allegation of confinement apparently does not create any state of offence, the Magistrate has noting to do there. Which confinements amount to offence? Secs. 340- 348 of the Penal Code deal with wrongful confinement with explanation as well as examples and punishment; these wrongful confinements are the offensive confinements.
This sec. 100 is also unambiguously clear that the section provides for issuing only warrant upon police to rescue the confined person immediately only to meet up an urgent situation. Under this section there is no scope for issuing summons to the confined person to present before the court.
But it is unfortunate that in our country huge numbers of cases are being filed in the Courts of Magistrates u/s. 100 of the CrPC by the husbands for getting her wife in his custody in the name of recovery of his confined wife on the assertions that the wife has been confined by her parents or relatives; even sometimes it is also alleged that the wife does not come to his house illegally, so she should come to him. In every of such cases the Magistrates issue summons upon the opposite parties for producing the wife in the court. It has to mention with pathetic that in these cases summonses are issued even upon the alleged confinee, i.e. the wife. In such cases the wife has to come before the court of Magistrate and if she does not want to go with her husband and wants to live in her parents’ house the case be dismissed upon such findings.
Another situation is that if any minor child is kept with his father, the mother files a case before the court of Magistrate u/s. 100 of the CrPC for getting custody of the said child. In that case too the Magistrate issue summons upon the father to produce the child in the court and after hearing the Magistrate gives orders as to who is to get the custody of the child under demand of the circumstances.
Our contention, in this “critique”, is whether exercises of such powers by the Magistrates are legal and within their jurisdiction.
At the commencement of this study we have to answer in a word to the above query that in both of the cases the powers as well as the procedures exercised by the Magistrates, as exposed above, are illegal and without jurisdiction.
Before giving arguments in favour of this answer we have to bring up the judicial pronouncements respecting ouster of jurisdiction of all other courts respecting matters of Family Courts; which are as follows:-
The purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings and practical difficulties will arise, if, inspite of the establishment of the Family Courts by the F.C. Ordinance, 1985, the Magistrate, continued to entertain cases for maintenance u/s. 488 of CrPC. Sec. 5 of the Ordinance gives exclusive jurisdiction to entertain, try and dispose of any suit relating to or arising out of all or any of he Family matters including maintenance. To my mind, this provision along with secs. 3 and 23 seems to have ousted the jurisdiction of the magistrates to entertain application u/s. 488 CrPC and to grant maintenance which is a Family Courts matter now, 42 DLR 450. Similarly held – After coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings, 50 DLR 47.
Plaintiff’s suit was for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction u/s. 488 CrPC. 54 DLR 175.
Sec. 3 of the Family Courts Ordinance provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force, sec. 4 has provided that all courts of Assistant Judges shall be the Family Courts for the purpose of this Ordinance and sec. 5 provides that the Family Courts shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to the subjects enumerated in this section, i.e., i) dissolution of marriage, ii) restitution of conjugal rights, iii) dower, iv) maintenance, and v) guardianship and custody of the minors. In addition, sec. 27 provides that all suits, appeals and other legal proceedings relating to or arising out of any matter specified in sec. 5 pending in any court immediately before the commencement of this ordinance shall continue in the same court and shall be heard and disposed of by that court as if this Ordinance has not been made. On consideration of the provisions of secs. 3, 4, 5 and 27 of the Ordinance we hold that the jurisdiction of the Magistrates in any of the said 5 matters have been clearly ousted and if there is any pending cases initiated before coming into force this ordinance shall be continued in that court and after coming into force of the Ordinance no Magistrate can now entertain any application or initiate any proceeding u/s. 488 of CrPC, case of Pochon Rikssi Das Vs. Khuku Rai Dasi and others 3 MLR 145, 50 DLR 47, 17 BLD 563, PLD 1969 (SC) 187. From the decision of this case of Pochon Rikssi Das Vs. Khuku Rai Dasi and others it is also clear that jurisdiction of Magistrate has been ousted not only in respect of maintenance u/s. 488 of CrPC but also in respect of any of the 5 matters of the family courts, e.g. for custody of the minor children or for getting custody of the wife by her husband u/s. 100 of CrPC etc.
As per provision of the Family Courts Ordinance all matters relating to i) dissolution of marriage, ii) restitution of conjugal rights, iii) dower, iv) maintenance, and v) guardianship and custody of the minors shall be exclusively tried under this Ordinance. Jurisdiction of criminal courts in case of maintenance is totally ousted by this Ordinance, 50 DLR 47.
A writ petition of habeus corpus was filed by mother seeking custody of the children from the father. In that case it was held that – In matters of custody of minor children, the paramount consideration is the welfare of the minor. Both parties adduce some statements which indicate disputed facts. It cannot be decided what is the interest of the children without taking evidence in this writ proceeding. Parties are directed to settle the matter in the Family Court in family suit, 3 MLR (AD) 265.
Now we may come back to our analysis.
We may give arguments in support of the above said answer as follows:-
First of all, after coming into force of the Family Courts Ordinance, 1985 the Family Courts have been established u/s. 4 and sec. 3 of the Ordinance provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. Sec. 5 provides that the Family Courts shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to the subjects enumerated in this section, i.e., i) dissolution of marriage, ii) restitution of conjugal rights, iii) dower, iv) maintenance, and v) guardianship and custody of the minors. In addition, sec. 27 provides that all suits, appeals and other legal proceedings relating to or arising out of any matter specified in sec. 5 pending in any court immediately before the commencement of this ordinance shall continue in the same court and shall be heard and disposed of by that court as if this Ordinance has not been made. Upon these clear provisions of the Family Courts Ordinance, no Magistrate or no other court of the country has no more jurisdictions to try any matters covered u/s. 5 of the Ordinance. After coming into force of this Ordinance no case can be filed or started in any other courts of the country respecting any matters contained in sec. 5 of the Ordinance; which are exclusively triable by the Family Courts.
We have to consider that the examples placed above, i.e. for recovery of wife is totally matter of restitution of conjugal rights and for getting custody of minor child is matter of custody of the minors; are clear matters are within exclusive jurisdiction of the Family Courts. The Magistrates have no authority to try or determine these matters. These two matters can in no way be categorized as an illegal or offensive confinement as covered by secs. 340- 348 of the Penal Code.
Secondly, in both cases the court has to decide upon taking evidence and upon consideration of practical adjustment between the parties and utmost welfare of the minor child. The Magistrates have no authority to take evidence u/s. 100 of CrPC and as such he has nothing to consider upon evidence and even if he takes any evidence in a proceeding u/s. 100 of CrPC is totally beyond jurisdiction. Besides, the whole proceedings as are taken by the Magistrates in these cases as shown above are illegal, irregular and without jurisdiction. Because, in a proceeding u/s. 100 of CrPC there is no authority to issue summons upon the confined person; rather in such a proceeding it has to issue warrant to police to rescue the confined person instantaneously. But the Magistrates always issue summonses to the allegedly confiner as well as upon the confined person too to produce the confinee before it; which is totally unknown to sec. 100 of CrPC. We do not know how and under what law and under what authority the Magistrates are using this jurisdiction totally in a wrong proceeding and without having any jurisdiction in the subject-matters. We are puzzled by such mis-use of the laws by the courts in the name of justice.
To conclude the study on this topic, I have to talk about that this is a matter of great unfortunate that when sec. 488 of the CrPC provided for clear jurisdiction to the Magistrates for maintenance for the wives and children and after pronouncement of judgment in Pochon Rikssi Das Vs. Khuku Rai Dasi and others case ousting Magistrates’ jurisdiction on maintenance matters the exercise of jurisdiction by the Magistrates for maintenance have been totally stopped. But, when u/s. 100 of CrPC the Magistrates have no authority to decide the matters of restitution of conjugal rights or custody of minor children, and when by the same judgment as well as other judgments as mentioned above the jurisdiction of Magistrates or any other courts in any of the five matters covered by sec. 5 of the Family Courts Ordinance have been ousted, unwarrantedly both of these matters have been exercised in the country by the Magistrates for years by total wrong application of this section and by applying total wrong procedures under this section (i.e. by issuing summons upon the alleged confiner or even upon the alleged confined person in lieu of issuing warrant to police to rescue the confined and sometimes by taking evidence); but, regrettably, there is none to stop it or even to say anything about the matter. What a Celukas in this strange country.
N.B. For more details about ‘restitution of conjugal rights, guardianship of wards and custody of children’ see the writer’s book “Law of the Family Courts Ordinance and Statutory Laws respecting personal religious laws” (yet to be published).